Sunday, August 29, 2010

For the second time this month, the 3rd District Court of Appeal in Florida has issued a reversal because of inflammatory arguments by an attorney. In this case, the defendants admitted liability, but that did not stop the plaintiff's attorney from making arguments to disparage the defendants as greedy, arrogant and callous corporate types who had no intention of compensating the plaintiff for his injuries. In trial, he said the defendants kicked the plaintiff "out on the street like a dog"; complained of "corporate arrogance and corporate greed"; and called defense attorneys "slick talkers." Go here for the full story.

Go here for the story of an Ohio attorney who has been suspended for two years after it was determined that she billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours.

Thursday, August 26, 2010

Here is our latest addition to the running list of things you should NOT do when practicing law. As usual, it is an easy one. If the judge excludes certain material from the trial you are NOT supposed to bring it up to the jury.

The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.

As reported in The Ethical Quandary Blog, the California State Bar Board of Governors has approved a new rule on imputation of conflicts of interest based on ABA Model Rule 1.10, but, oddly, it has opted to let the issue of ethical screening be decided on a case-by-case basis. The Board’s proposed change is now pending consideration by the California Supreme Court.

I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.

On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?

The Legal Profession Blog is reporting that the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.

The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.

The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.

The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”

I have often complained on this blog about inadequeate/lenient sanctions for misconduct. I can't complain today! The Wall Street Journal is reporting that a New Jersey state judge has ordered Paul Weiss and Lowenstein Sandler to pay almost $2 million in legal fees for filing what she considered frivolous suit. Wow! Now that's a big sanction; and by the way, that is supposed to come out of the firm's pocket - not the client's.. In the lawsuit a billionaire plaintiff argued that his father in law had made an oral promise to leave a greater share of his estate to his daughter - the plaintiff's late wife. For more on this story go to the WSJ Law Blog.

Tuesday, August 24, 2010

Last night we discussed in class how an attorney can be disciplined for conduct outside the practice of law. Interestingly, apparently there is some debate in Australia as to whether this should be the case. Here is a link to an article discussing the issue (via The Legal Ethics Forum).

The ABA Commission in charge of performing a review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments has asked for comment on these two proposals:

(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and

(b) to allow foreign lawyers to be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.

Here is a link to a debate on these proposals. In particular take a look at the exchange between Stephen Gillers and Larry Fox.

More information on the Commission including documents, transcripts, articles and posted comments can be found here.

Saturday, August 21, 2010

The Legal Profession Blog is reporting today on a bar discipline case from North Carolina that imposes a very unusual limitation on the attorney's practice as a sanction: the attorney was banned from representing female clients.

In this case, it was proven that the attorney had attempted to have sex with clients and had made inappropriate sexual comments to clients. He was suspended for three years, but the suspension was stayed upon compliance with numerous conditions, including that the attorrney would represent female clients.

I have never heard of such a limitation before and I am not sure it is the best idea. Perhaps mandatory counseling or therapy would have been better.

Wednesday, August 18, 2010

Eight large law firms have submitted a 66-page comment to the Florida Supreme Court objecting to Proposed Florida Bar rules for web advertising. Among other objections, the comment argues that the new rules would require law firms to spend millions of dollars redoing their existing sites, could push clients to choose law firms in other states, and violate the First Amendment. Go here for the full story.

The California legislature, in what is believed to be the first instance of its kind in the nation, has enacted a law specifically addressed to the statute of limitations for actions by wrongfully-convicted persons against their attorneys. When proof of innocence is an element of the claim, the new law sets the time limit at two years from the date of post-conviction exoneration.

Wednesday, August 11, 2010

Here is a new addition to our running commentary on how NOT to practice law. For the most recent updated list of links on this topic go here.

The Legal Profession Blog is reporting today that a Massachusetts attorney has been suspended because he agreed to pay one of his employees "under the table." The Court found that by not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).

In this case, the lawyer asked his new employee to sign a W-4 form, but the employee said she would prefer not to because she wanted to maintain her MassHealth benefits. In other words, the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified. Understanding this, the lawyer agreed to not report the employee’s income to the state and federal authorities and paid her weekly in cash for about seven months.

Given that the neat arrangement was a secret between the attorney and the employee, you wonder how did the state find out about the misconduct, eh?

Eventually, the attorney terminated the employee's employment. Given that he had never reported her employment to begin with, she was not eligible for unemployment benefits, but, at her request, the lawyer made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. It didn't take long for the Massachusetts Attorney General’s Office to put two and two together and the lawyer was hit with a civil penalty of $2,000 and now a suspension.

Tuesday, August 10, 2010

Law.com reported yesterday that an Atlantic County, New Jersey, Superior Court Judge has been hit with ethics charges for allegedly launching into a tirade against an unrepresented family court litigant who complained about a child-visitation schedule he ordered. Go here for the full story. In the complaint, Advisory Committee on Judicial Conduct counsel alleged that the heated invective called into question Baker's ability to remain impartial.

Meanwhile, the Chicago Daily Law Bulletin is reporting today of case in which a convicted murderer has asked the Illinois Supreme Court to order a new sentencing hearing because the sentencing judge called him a derogatory term for gay men in court before sentencing him to more than a century behind bars. In his petition for leave to appeal, the defendant contends that the utterance of the derogatory slur used to describe gay men was "indicative of the sentencing judge's abandonment of impartiality in the sentencing process."

Finally, Law.com reported a few days ago (here) that a Florida state appeals court has thrown out a $1.4 million jury verdict because of "inflammatory and prejudicial comments" made in court by the plaintiffs attorney. Go here for the court's opinion. The Court concluded that the attorney engaged in "improper litigation tactics" that went well beyond "partisan zeal" and that "indisputably require reversal."

Friday, August 6, 2010

A few days ago (here), I commented on a new case in which the court reversed a conviction because of comments made by the prosecutor. Now comes another opinion from a different division of the appellate court in which the court rejects a similar claim. This new case is called People v Chester and is available here.

Are the cases consistent? You be the judge.

In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:

“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:

"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."

Tuesday, August 3, 2010

In the wake of the July 15 suicide of partner in the Chicago firm Reed Smith, the Wall Street Journal Law Blog has published a short article and a summary of this article from "American Lawyer" by Steven Harper, a former Kirkland & Ellis partner turned blogger and adjunct professor.

Unfortunately, suicides among lawyers are not rare. In fact, a report distributed at the annual meeting of the ABA Center for Professional Responsibility last May states that lawyers suffer depression, commit suicide & abuse alcohol and drugs at approximately twice the rate of the general population.

Sunday, August 1, 2010

Just about a month ago, the Illinois Court of Appeals (4th division) issued an opinion in which it took the unusual step of reversing a conviction because of certain comments made by the prosecutor during summation. The case is called People of Illinois v Roderick Smith and it is available here.

In a key passage of the opinion, the court concludes:

In this case, . . . we see no purpose for the prosecutor's remarks other than to draw the jury’s attention to defendant’s decision to exercise his federal and state constitutional right not to testify . . . By overruling defense counsel's objections, the trial court in effect permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf. I have in the past criticized the court for giving prosecutors "a pass" on conduct like this (see here). I am glad to see the court took a different approach to the issue this time around.